Archivist: IRS did not follow law

The U.S. Archivist told lawmakers on Tuesday that the IRS “did not follow the law” when it failed to report the lost Lois Lerner’s emails, which could have included official documents.

During a House Oversight and Government Reform hearing David Ferriero stopped short of saying the tax-collecting agency “broke” the law, saying “I am not a lawyer.”

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But when pressed by Michigan Republican Tim Walberg about whether the IRS failure to inform the National Archives when it learned that two years of the former head of the tax exempt division’s email were lost, he said: “They did not follow the law.”

The testimony came at the third congressional hearing in less than two weeks since the IRS revealed the loss of emails from Lerner, a key figure in the targeting controversy. Republicans have pounced on the late notice given to lawmakers, while Democrats say Republicans are waging a partisan battle ahead of the midterm elections to rally the base.

Also at the hearing, subpoenaed White House attorney Jennifer O’Connor, a former IRS counselor to the acting commissioner, told the panel she had no prior knowledge of Lerner’s lost emails because her tenure predated that discovery.

“I did not know that her emails were missing and unrecoverable or that her computer crashed,” said O’Connor. She was hired on to help the IRS respond to congressional inquiries between May 2013 to November 2013.

Ferriero said the IRS didn’t follow the law because the Federal Records Act requires agencies to “notify us when they realize that they have a problem” — meaning any time documents or official emails are intentionally destroyed or lost on accident, they’re supposed to know.

IRS Commissioner John Koskinen told Oversight Monday night that they did not notify Archives when they learned a bulk of Lerner emails were missing in February 2014 — nor when they realized in April or May that the crash meant several years worth of Lerner’s emails were gone.

The Archives, which oversees record-keeping laws, is probing the matter and has asked the IRS to investigate “whether the alleged disposal was broader than was reported in the June 13, 2014, letter,” according to its letter to the IRS. The IRS must report back in 30 days.

Oversight Democrats were quick to point out that record-keeping issues are a government-wide problem.

“Do you think that records retention is a problem exclusive to the IRS?” asked Rep. Michelle Lujan (D-N.M)

Ferriero answered no.

Transparency advocates have also said this is typical — pointing to scandals in the Bush administration where emails and documents disappeared, including the infamous torture-memos by Justice Department lawyer John Yoo.

The law requires agencies to save official records — defined in a National Archives guidance post as “documentary materials that agencies create and receive while conducting business that provide evidence of the agency’s organization, functions, policies, decisions, procedures, and operations, or that contain information of value.”

At the IRS, employees who send such official correspondences via email are supposed to print them out and file hard copies.

Koskinen said before the hearing Monday that they had some hard copies of Lerner’s emails, suggesting she “complied with agency policy at least in some instance.” He didn’t know how many.

But when pressed by Rep. Mark Meadows (R-N.C.) on the matter of potentially lost official documents, he said: “I don’t know whether anything lost was an official record or not” when it came to Lerner’s emails.

Given Lerner’s position as head of the department at the IRS, it’s likely many of her emails were official documents since she would theoretically have discussed IRS policies, decisions and operations, suggested Paul Wester, chief records officer for the U.S. government at the hearing.